Juli Ponce (Ed.), Nudging’s Contributions to Good Governance and Good Administration – Legal Nudges in Public and Private Sectors, (with: Foreword by Ismael Peña-López, Preliminary Considerations by Cass R. Sunstein, Afterword by Ricardo Rivero Ortega)

Juli Ponce (Ed.), Nudging’s Contributions to Good Governance and Good Administration – Legal Nudges in Public and Private Sectors, (with: Foreword by Ismael Peña-López, Preliminary Considerations by Cass R. Sunstein, Afterword by Ricardo Rivero Ortega), European Public Law Series / Bibliothèque de Droit Public Européen, vol. CXXVI, European Public Law Organization (EPLO), Athens, 372 pp., 2022, ISSN: 2308-8648, ISBN: 978-618-5417-13-0

The relationships between behavioral insights, law and other sciences and public administrations is an exciting and (not so) new field of academic work and practical applications all around Europe and the world. There are still few publications on the topic from a legal point of view in Europe and even less works including a transdisciplinary perspective. The interest is continuously increasing thanks to the use of nudges against the Pandemic and several Nobel Prizes in Economy in the last years which have been awarded in relation to this issue. This book deals with the relationship between Law and other sciences (Economy, Linguistics and Political Science, especially) and behavioral insights in order to make effective the right to good administration and have a good governance. It considers how different nudges can improve the functioning of public administrations in an effective and unexpensive way, preventing corruption and maladministration. It also analyzes how nudging could lead to a better regulation of private sector in several fields, improving compliance through a less intrusive public intervention that respects the principle of proportionality.

Juli Ponce is a Law Professor, a former Assistant Dean at the University of Barcelona Law School and a former Director of the Public Administration School of Catalonia. He also was the Director of the TransJus, the transdisciplinary research institute at the University of Barcelona Law School which develops research activities in the fields of Law, Political Science, Criminology and Public Management, exploring their links with Neuro-sciences, Economics and other sciences. Juli is a frequent speaker on Public Law, good governance, the right to good administration, the better/smart regulation, the prevention of corruption and zoning and urban planning and housing law. Dr. Ponce has published in several prestigious academic journals throughout Spain, Europe, United States and Latin America. He is a member of the European Group of Public Law and has been a visiting professor and has lectured at the Universities of Georgia State (Atlanta, US), Sheffield (UK) or Pontifícia Universidad Católica del Perú, among others.

Contents

Foreword: If Not Rationality, Then What?

by Ismael Peña-López

Preliminary Considerations: Some General Ideas about Behavioral Insights and Nudges

by Cass R. Sunstein

I. Liberty-preserving Approaches

A) Nudges Maintain Freedom of Choice

B) Transparency and Effectiveness

C) The Need for Evidence and Testing

II. Ten Important Nudges

III. Institutionalizing Nudges: Two Approaches

Chapters

I. Introduction: Behavioural Sciences and Nudges. Achievements, Criticisms and Future Developments

by Juli Ponce

I.1. Behavioural Insights

I.2. Nudges

I.3. Criticisms of Behavioural Insights and Nudges

I.4. The Need for Transdisciplinarity in Behavioural Analysis

I.5. This Book

I.6. Bibliography

II. Game Theory and Nudging for Good Governance

by David Jimenez-Gomez

II.1. Preliminary Concepts

II.1.1. Game Theory

II.1.2. Law and Game Theory

II.1.3. Behavioural Economics and Nudging

II.1.4. What Do We Understand by “Good Governance”?

II.1.5. The Concept of Well-being: A Key Factor for Good Governance

II.1.6. Behavioural Game Theory

II.2. Application of Game Theory and Nudging to Good Governance

II.2.1. Reducing Biases

II.2.2. Laws vs. Nudges

II.2.3. Transparency

II.3. Application: Blockchain

II.3.1. Transparency in Blockchain

II.4. Conclusion

II.5. Bibliography

III. Law, Nudging and Good Administration

by Juli Ponce

III.1. Public and Private Decision-makers and Rationality

III.2. Law and Behavioural Sciences: A Change of Paradigm

III.3. Nudging and Nudges

III.4. Behavioural Sciences, Nudging and Improving Decision-making in the Public and Private Spheres:

Specific Areas

III.5. Nudging, Authoritarianism and Proportionality

III.6. Behavioural Insights and the Covid-19 Pandemic

III.7. Final Considerations: Criticisms of Behavioural Insights and Nudging and Their Future

III.8. Bibliography

IV. Nudges and Public Law. Opportunity and Regulation

by Elisa Moreu Carbonell

IV.1. Nudges as Tool for Guiding Behaviours and Improving Compliance with Regulations

IV.2. Conceptual Definition

IV.2.1. Positive Definition

IV.2.2. Negative Definition

IV.3. Types of Nudges and How They Fit into the Traditional Classification of Administrative Action

IV.3.1. Based on the Behavioural Norm or Bias that the Nudge is Intended to Influence

IV.3.2. Based on the Levels of Application of the Nudge

IV.3.2.1. Regulatory Nudges

IV.3.2.2. Non-regulatory Nudges

IV.3.3. Based on the Nudger: Public and Private Nudges

IV.4. Examples of Nudges in Public Policies

IV.5. Limitations and Risks Associated with Nudging

IV.5.1. Legal Limitations

IV.5.2. Technical Limitations

IV.5.3. Ethical Limitations

IV.6. Conclusions and Debate

IV.7. Bibliography

V. Cognitive Psychology, Automatic Thinking and Administrative Law Teaching

by Francisco Velasco Caballero

V.1. Rationality and Irrationality in the Teaching of Administrative Law

V.2. “Super Positive” Law and Enhanced Rationality in Administrative Law Teaching

V.3. Automatic Cognition and Law Teaching

V.4. Curricular Contents and Teaching Methods for the Automatic Application of Administrative Law

V.4.1. Conditions of Senders and Recipients

V.4.2. Concepts as Stereotypes

V.4.3. Legal Systems as Cognitive Schemes

V.4.4. Reference Sectors

V.4.5. Examples and Prototypes

V.4.6. Explanatory Language

V.4.7. In-class Discussions

V.5. Bibliography

VI. Linguistics and Behavioural Sciences

by Estrella Montolío Durán / Fernando Polanco Martínez / M.ª Ángeles García Asensio

VI.1. Introduction

VI.2. Linguistic Studies on How to Persuade the Receiver

VI.3. Words Matter

VI.3.1. False Synonyms (Strategic Synonyms)

VI.3.2. Lexis that Gives Different Perspectives

VI.3.3. The Renaming of Negative Concepts (Euphemism)

VI.4. Syntactic Procedures

VI.4.1. Word Order and Invited Inferences

VI.4.2. Word Order and the Primacy Effect

VI.4.3. Information Order and Cognitive Effects (Framing and Bandwagon Effects)

VI.5. Language Use as Strategic Action

VI.6. Language Use and Institutional Communication

VI.6.1. Linguistic Politeness and Communicative Immediacy

VI.6.2. Inclusive, Collaborative Language

VI.7. Conclusion

VI.8. Bibliography

VII. Tax Psychology: How Behavioural Tools Can Improve the Tax System

by Pablo Grande Serrano

VII.1. An Overview of the Behavioural Sciences and their Toolbox

VII.2. Tax Psychology

VII.3. Criticisms and Limitations

VII.4. Conclusions

VII.5. Bibliography

VIII. Nudges and Tax Penalties: Between Incentive and Deterrence

by José-Andrés Rozas

VIII.1. Approach

VIII.2. How the Behavioural Sciences Feed Into Tax Policy

VIII.3. The Tax Compliance Equation (WBAD)

VIII.3.1. Tax Policies of Prevention

VIII.3.1.1. Clear Communication

VIII.3.1.2. Ethical Component

VIII.3.1.3. Tax Numbness and Loss Aversion

VIII.3.2. Tax Policies of Incentive

VIII.3.2.1. Tax Lotteries

VIII.3.2.2. Informational Letters and System Certification

VIII.3.2.3. Discounts for Payment by Direct Debit

VIII.3.3. Tax Policies of Deterrence

VIII.3.3.1. The Incentive for Repentance

VIII.3.3.2. Naming and Shaming

VIII.4. Conclusions

VIII.5. Bibliography

IX. Plain Writing: A Nudge to the Democratic Requirement for Transparency in Government-to-Citizen Communication

by M.ª Ángeles García Asensio / Fernando Polanco Martínez / Estrella Montolío Durán

IX.1. Introduction

IX.2. Cognitive Biases and Linguistic Nudges

IX.3. Plain Language and the Right to Understand Government Communication

IX.4. Writing in Plain Language

IX.5. Practical Application of Plain Writing

IX.6. Conclusions

IX.7. Bibliography

X. Behavioural Analysis and Public Policy Evaluation: A Virtuous Circle

by Santiago A. Martín Nájera

X.1. Introduction

X.2. Resistance to the Use of Behavioural Analysis and Evaluations

X.3. New Goals, New Policies

X.4. Limits of Behavioural Analysis

X.5. Practical Examples of the Use of Behavioural Analysis

X.6. The Importance of Good Regulation

X.7. The Creation of Public Policies

X.8. The ex-post Evaluation of Regulations can Create a Virtuous Circle

X.9. Definition of Evaluation

X.10. The Intervention of External Oversight Bodies to Enhance Regulation through Behavioural Analysis

X.11. Conclusion

X.12. Bibliography

Afterword

by Ricardo Rivero Ortega

I. The Need for Innovation in Administrative Law

II. Are Cognitive Strategies Constitutionally Acceptable?

III. The Need to Create Nudge Units

IV. Good Regulation and Nudges: Why Spend or Ban when There Are Less Oppressive Alternatives?

V. A Government Intervention Respectful of Personal Freedom